中国合宪性审查制度的确立及实践应用研究 = Research on the Establishment and Practical Application of the Constitutional Review System in China

다국어 초록 (Multilingual Abstract)

China's constitutional supervision system adopts the model of supervision by representative institutions, and the absence of a specialized review institution has led to a long period of ineffectiveness of the constitutional supervision system. After years of argumentation, China has explicitly adopted the constitutional review system as the main system for realizing constitutional supervision.In 2018, China amended the Constitution，in which it renamed the original specialized committee of the National People's Congress"Legal Committee" as "Constitutional and Legal Council" and gave the new institution main responsibility of constitutional review, with the intention of promoting constitutional review. However, over the past five years, the practical application of the constitutional review system has been unsatisfactory. As a new system, only eight after-event constitutional reviews have been conducted, and all of them were terminated at the initial review stage due to the resolution of problems through coordination among national institutions. Numerous problems have been identified in specific practical applications, such as the fact that the main body playing a major role in the constitutional review is not the newly established Constitutional and Legal Council, but the Legislative Affairs Commission, which is an office of the Standing Committee of the National People's Congress, and that the Constitutional and Legal Council does not play the role it should play in the after-event reviews; the objects of the review include various statute, autonomous rules, separate rules and judicial interpretations, excluding laws, regulations and other normative documents, and there is a lack of procedural safeguards in the review of constitutionality of the relevant normative documents; the form of review and judgment is not uniform, with a large degree of arbitrariness, which is not conducive to the normative nature of the constitutional review and other issues. In this regard, this paper puts forward the proposal to clearly clarify the implementation of the status of the main body of the Constitutional and Legal Council in the constitutional review, so Constitutional and Legal Council can give full play to the function of constitutional review; laws, regulations and other normative documents will be clearly included in the scope of the Standing Committee of the National People's Congress for the record review for the review of the constitutionality of the procedural safeguards; adopt the "restricted constitutionality" method of reviewing and judging to standardize constitutional review, so as to promote the effective application of China's constitutional review system.